HBO’s Divorce Ep. 8, Church; Commentary by FK

HBO’s Divorce: Episode 8 – From Fred’s Perspective By Fred Kobb

HBO Divorce Series: Issues and Commentary—Episode 8

Much of HBO’s Divorce Episode 8 tracks Frances as she pursues a new job as an art curator at Sotheby’s auction house. It is Frances’ dream job and she eventually gets the offer. But, Frances begins to question whether to take the job after her lawyer advises her that Robert would be entitled to half of her income from the job and that an increase in her income would establish an enhanced “standard of living” that Robert could exploit in the divorce. Given those detriments, Frances asks Sotheby’s if she can take the job on the condition that they defer paying her until after the divorce is final. Sotheby’s is not willing to play that game and as a consequence they offer the job to someone else. Adding insult to injury, as a result of that stunt, Frances also loses Sotheby’s as a client in her professional staffing agency.

The notion that Robert would be entitled to receive half of Frances’ income from the Sotheby’s job is pure fiction (which, appropriately, Divorce is). There is no basis in Maryland law that would support that outcome. While it’s true that one’s income impacts child support and could also influence issues surrounding alimony, a spouse’s income may not be directly divided by a court. At the same time, income represents a form of marital property that is subject to equitable division in a divorce. If Frances were to save her income and accumulate those savings over time, Robert could make a property claim against those savings. On the other hand, if Frances were instead to use her earnings to pay reasonable family expenses (mortgage, groceries, gas, vacations, clothing, etc.), or to pay debt, or even to pay her lawyer, she could not be accused of misspending (“dissipating” is the legal term of art) marital funds. Thus, absent an accumulation of saved income or dissipation of income, Robert would have no direct claim to Frances’ Sotheby’s earnings.

There is also little chance that the Sotheby’s job would establish an elevated standard of living that would entitle Robert to any financial benefit in the divorce. In Maryland, one of the factors a court considers in deciding whether to award alimony and the amount of alimony is the standard of living that the parties established during their marriage. It is my impression that the Sotheby’s job would not have resulted in a material improvement in Frances’ standard of living. However, even if it would have, a good argument could be made that because the new job came along and the resulting improved standard of living manifested itself after the separation—although admittedly “during the marriage”—it should not be considered.

This scenario highlights a question that arises during divorce representation when a client has the opportunity to take a better paying job after a separation but before the divorce is final. Invariably, the client seeks advice about whether to accept the new job. This can be a tough call, and the advice is often a function of the circumstances. If it is possible to delay the start of the new job until after the divorce is finalized without risking the job offer—this was not the case for Frances—then that would solve the problem. However, it is difficult to advise a client not to improve his or her earning capacity just because it would compromise his or her position in the divorce. Where the long term benefits of a better paying job outweigh any adverse impact the job might have on the outcome of the divorce, then taking the job makes sense. Whether Frances got good advice from her lawyer on this point is debatable.

– Fred Kobb is a litigator at heart. He first joined Wright, Constable & Skeen over 25 years ago to defend the firm’s railroad clients in serious personal injury cases. His practice quickly expanded into the family law area, where he applied his negotiation and litigation skills to zealously advocate on behalf of individuals whose families were undergoing a life-changing event. Read more >>